8.4.20

A federal judge in New York issued a nationwide injunction on Wednesday that temporarily blocks the Trump Administration from implementing or enforcing the “public charge rule” as long as the COVID-19 State of National Emergency is in place. The court’s order was effective immediately.

The public charge rule

On August 14, 2019, the U.S. Citizenship and Immigration Services published a final rule called “Inadmissibility on Public Charge Grounds.” The rule would require foreign nationals to show that “they have not received public benefits” beyond a certain threshold before they could extend or change their status.

The USCIS explained the rationale for the rule as follows:

Self-sufficiency has long been a basic principle of U.S. immigration law since our nation’s earliest immigration statutes. Since the 1800s, Congress has put into statute that aliens are inadmissible to the United States if they are unable to care for themselves without becoming public charges. Since 1996, federal laws have stated that aliens generally must be self-sufficient...This final rule requires aliens...to show that, since obtaining the nonimmigrant status they seek to extend or to change, they have not received public benefits (as defined in the rule) over the designated threshold.

If the USCIS determined that a foreign national received public benefits in excess of the threshold, the individual could be denied benefits such as permanent residence.

The rule was subject to a number of challenges in the federal courts, including a lawsuit filed by the states of Connecticut, New York, and Vermont, and New York City, and another lawsuit filed by a number of advocacy groups. These two lawsuits were consolidated, and in October 2019, the rule was enjoined by Judge George Daniels of the U.S. District Court for the Southern District of New York. The government obtained a stay from the U.S. Supreme Court in January 2020, and the public charge rule took effect on February 24. On March 27, 2020 -- in response to the COVID-19 crisis -- the USCIS issued an “alert” (which it characterized as “informal guidance”) that excluded treatment and services related to COVID-19 from the “public charge” calculation.

In April, the plaintiffs in the New York case asked Judge Daniels to block the rule again, this time arguing that the rule was deterring some immigrants from seeking health care and public benefits that are "essential tools for protecting the public at large" by limiting the "spread and severity" of coronavirus.

COVID-19 justifies suspending public charge rule, federal judge says

In Wednesday’s decision, Judge Daniels found that the plaintiffs had shown that they would suffer “irreparable harm” if the public charge rule remained in effect and that the “balance of equities” favored the plaintiffs. Accordingly, he blocked the USCIS from implementing or enforcing the public charge rule during the National Emergency related to COVID-19. Judge Daniels said there was “ample evidence” that the public charge rule discouraged immigrants from being tested for COVID-19, which endangered their health as well as the health of the general public:

As a direct result of the rule, immigrants are forced to make an impossible choice between jeopardizing public health and personal safety or their immigration status.

He also found “plainly insufficient” the efforts of the USCIS to address the rising concerns among immigrants regarding the impact of the rule. With respect to the exclusion issued in March, he noted among other things that the COVID-19 exclusion applied only to treatment and testing paid for by Medicaid but not to enrollment in Medicaid generally; that the exclusion did not apply to other medical conditions that might make an individual vulnerable to COVID-19, such as Type 2 diabetes; and that there was nothing preventing the USCIS from making a retroactive change to its “alert.”

Effect of decision

Judge Daniels’ order prevents the public charge rule from being implemented or enforced anywhere in the United States for the period of the COVID-19 National Emergency declared by President Trump on March 13. The court’s order covers applications to register permanent residence or adjust status filed in the United States, and consular processed permanent residence applications filed abroad.

As long as the injunction and the pandemic emergency are in effect, the USCIS will apply the 1999 public charge guidance that was in place before the new rule was implemented on Feb. 24, 2020. That means all permanent resident application adjudications on or after July 29 will be consistent with the older regulations.

However, the government can ask for a stay or reversal of Judge Daniels’ order from the U.S. Court of Appeals for the Second Circuit, or appropriate relief from the U.S. Supreme Court.

If you have any questions about this or other workplace issues, please do not hesitate to contact any member of Constangy’s Immigration Practice Group.

For a printer-friendly copy, click here.

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